Proving the reasonable cost of past and future medical care

The importance of understanding how to prove past and future medical care at trial is critical to the recovery of damages. The law in this area has evolved quite a bit in the last several years and ensuring you are up to date on it is important to ensure you can prove these damages. Qaadir v. Figueroa, 67 Cal.App.5th 790 (2021), should be read and re-read to prepare for proving medical damages.

Past medical bills

Past medical care is typically reflected in paid bills through insurance, liens, or a combination of both. When discussing healthcare with your clients, it is important to explain the difference between the use of insurance, if available, and treatment on a lien. Each has its own implications not only on your client’s case but also on them directly with regards to payment for services.

When proving the cost of past medical bills there is a two-prong test to evaluate your client’s recovery for services rendered. First, has a bill been paid or incurred, and second, what is the reasonable value for the services rendered. If your client or your client’s insurance has paid a medical bill, then the paid amount is evidence of the reasonable value of the services (prong two), and typically there should be no further dispute that the paid amount is admissible at trial. However, this does not mean that the total billed amount or the full bill is admissible. Howell, specifically dealt with this issue holding that the billed amount is not admissible as it is not relevant if a lesser negotiated amount was agreed upon and paid. Howell v. Hamilton Meats & Provisions, Inc., 52 Cal.4th 541 (2011). If your client’s bills are paid, consider stipulating to the paid amount as reasonable and an agreement to add it to the verdict form at trial.

If your client has had treatment on a lien, the approach to the two-prong test is a bit different. First, the testimony needs to establish that the bill has been paid or incurred. Given it is a lien, it will likely be incurred, not paid. Your client or the treating physician can provide this testimony. Second, you need to prove the reasonableness of the bill. This can be done in more than one way. The traditional way to do this is to have a billing expert testify as to the usual reasonable and customary (“UCR”) amount for the services provided in the same geographical area. This will likely discount your bill. This can be detrimental to your client because an award of less than the full billed amount can leave your client responsible for payment of the difference between the billed amount and the amount per UCR.

The Qaadir case dealt with how to establish that a lien amount is a reasonable amount for services. First, if the bill is not paid, but is incurred, you should move to have the bill admitted as relevant evidence to prove the first prong of the test, the amount incurred. See Qaadir, 67 Cal.App.5th at 798. Even if there is testimony that the bill potentially is greater than the reasonable value, it should still be relevant and admissible because the plaintiff is financially responsible to pay it. Id. at 805. To establish the billed amount is reasonable, look to the physician’s office that billed the amount to explain how the amount was determined. This should include the fact that the services are rendered on a pay later basis. It is also important for the expert to testify that this is the amount that they bill for the services rendered. This helps to establish that this amount is an accepted amount for the services in that geographical location.

This testimony, and that of your client, is critical to explain to the jury that amounts vary for services and that your client is responsible for the entire amount regardless of what other facilities or other people pay at different locations.

Future medical bills

When proving the value of future medical bills, you must first establish the required care through the testimony of a medical expert. Once established, your medical expert should provide that information to your life care planner to determine what the reasonable cost of the care is for your client’s future needs. Your life care planner will typically use UCR to determine the cost of care. The care plan should include when the care will be needed, the frequency and the duration. Your expert should be prepared to testify to the methodology used to come to the cost including the sources used and why those sources are reliable. Using the incorrect geographical location for where the treatment is to occur or using unreliable sources can cause your life care plan to quickly crumble.

Once the future care costs are determined, they will need to be provided to an economist to determine present cash value. This is the amount of money needed today to afford the care in the future. This number will often be higher than the cost laid out in the life care plan as the cost of certain types of medical care increase faster than the rate of inflation. Talk with your economist about this so that the expert is prepared to explain this to the jury and so that you are prepared to cross the defendant’s expert when they testify that less money than the value of the plan is needed to pay for the future care.

Challenging the other side

It is important to be prepared to challenge the billing expert and the life care planner on the other side. The challenges for both experts are similar. Find out their background. The defense may use a physician to challenge the cost of past care. Ask that physician what their history is in billing amounts and accepted amounts for services. Find out if they bill for the services they are opining on as they may have no experience with the service or the cost. For instance, is an orthopedic surgeon opining on the cost for emergency room services? The same holds true for a life care planner. Is the expert certified? What sources are they using? Are they considering cost of care based on Medicare, Medi-Cal or cash payment? All of these items need to be considered, which requires significant preparation to challenge a defendant’s position that your client should recover a lesser amount for care and treatment. Preparing for your position, as well as challenging their position, will give you the best chance at maximizing the recovery for your client.